Will the government charge Wikileaks founder Julian Assange under the Espionage Act? Or go further still? Corbis

December 10, 2010

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Julian Assange is behind bars in Britain on an arrest warrant over alleged sex offenses in Sweden. But both the Obama administration and senior Republicans have called for the WikiLeaks founder to face charges in an American court. The Justice Department is looking at various options for indicting Assange — considering potential charges under the 1917 Espionage Act and "other possible offenses, including conspiracy [with the person who originally leaked the documents] or trafficking in stolen property." Could Assange really be prosecuted here? (Watch an AP report about Assange's status)

No. We still have a First Amendment: The Constitution, says Michael A. Lindenberger at Time, "provides enormous protection for publishers of state secrets." Assange didn't steal documents, he merely published them. That's pretty clearly protected under the First Amendment. Getting Assange to the U.S. won't be easy either. "Even the friendliest" European nations "will look askance at any extradition request that looks to be political in nature.""The U.S.'s weak legal case against WikiLeaks"

And our Espionage Act is not up to the task: Trying Assange under the Espionage Act would be near impossible, says Louis Klarevas at The Atlantic. It is "wildly out of date." For example, it states that anyone who "obtains and retains classified information" is guilty of a crime. That would put all the newspapers who published the stories on the wrong side of the law. And if you posted them on your Facebook wall, "you're probably guilty too.""WikiLeaks, the web, and the need to rethink the espionage act"

The government will find a way: If the law doesn't exist to charge Assange, says Glenn Greenwald at Salon, the government will simply create one. The truth is, the U.S. is "happy to severely punish anyone they want without the slightest basis in 'law.'" Already, it has "blocked access to [Wikileaks'] assets, tried to remove them from the internet" and "declared them 'terrorists" — all without "any charges being filed or a shred of legal authority.""Anti-WikiLeaks lies and propaganda — from TNR, Lauer, Feinstein and more"